DERRICK WAYNE WEATHERALL, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-86-00003-CR
 
DERRICK WAYNE WEATHERALL,                FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS
 
 
        APPELLEE.                                 OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, OVARD AND THOMAS
OPINION BY JUSTICE THOMAS
MARCH 20, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        Derrick Wayne Weatherall's original appeal was taken from a conviction for the offense of aggravated robbery. A jury found him guilty and assessed his punishment at forty-five years' confinement and a $10,000 fine.
        Before this Court, appellant argued that the trial court erred in instructing the jury on the law concerning good time and parole because the charge was predicated on an unconstitutional statute. In an unpublished opinion, appellant's constitutional challenge to Article 37.07, section 4, of the Texas Code of Criminal Procedure was rejected by this Court. See Weatherall v. State, No. 05-86-0003-CR (Tex. App.--Dallas, February 19, 1987). In his petition for discretionary review to the Texas Court of Criminal Appeals, appellant urged that this Court erred in holding Article 37.07, section 4, unconstitutional.
        In Rose v. State, 752 S.W.2d 529 (Tex. Crim. App. 1988), the Texas Court of Criminal Appeals held the statute unconstitutional. However, in Rose, the Court held that it is still necessary to conduct a harm analysis under the guidelines of Texas Rule of Appellate Procedure 81(b)(2). Rose, 752 S.W.2d at 554; Haynie v. State, 751 S.W.2d 878, 879 (Tex. Crim. App. 1988). The Court of Criminal Appeals vacated our judgment and remanded the cause to this Court to conduct a harm analysis. We hold that beyond a reasonable doubt, the error made no contribution to the punishment assessed and affirm the judgment.
        Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides the general harm analysis test to be applied by appellate courts in criminal cases and states as follows:
 
 
        If the appellant in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
TEX. R. APP. P. 81(b)(2). In applying the standards specified by this rule, we are required to review the entire record.
        The applicable range of punishment upon appellant's conviction was a minimum of five years to a maximum of ninety-nine years' or life imprisonment with the possibility of a fine of up to $10,000. The jury assessed punishment at forty-five years' confinement and a $10,000 fine.
        The record reflects that the voir dire examination of the panel was recorded; however, parole was not mentioned. At the guilt-innocence stage, the evidence shows that the appellant, then seventeen, and his companion attacked and stabbed a cyclist at White Rock Lake. They were attempting to steal his bicycle. Appellant's companion cut the cyclist's throat, causing him severe blood loss and partial facial paralysis. The attackers continued to pursue even though the cyclist continued to resist the robbery. There were three witnesses to the attack. Appellant and his companion were tried together.
        The State did not mention parole during its argument to the jury at the punishment phase of trial. The defense mentioned parole, stating to the jury, "You know, even under a life sentence, folks, sooner or later he's going to be repatriated to this society, even under a life sentence because the court tells you that there's parole." The defense had been arguing that appellant would come back from the penitentiary a hardened criminal, and that he should be given probation instead of a prison term. The State asked for a life sentence and a ten thousand dollar fine for both appellant and his companion.
        As required by Article 37.07, the trial court submitted the following instruction to the jury:
 
 
        You may consider the existence of the parole law and good time conduct. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(b) (Vernon Supp. 1988). The general presumption is that a jury follows the instructions given by the trial judge in the manner presented. Gamez v. State, 737 S.W.2d 315, 324 (Tex. Crim. App. 1987). The jury sent one note to the trial court during their deliberations on punishment. It read as follows, "Are the terms 99 years and life considered to be one and the same?".
        The lack of emphasis on the parole law by the parties throughout the course of the trial, coupled with the particular facts of this offense and the sentence he received, leads us to conclude that the statutory parole instructions did not affect appellant's sentence. We hold beyond a reasonable doubt that the error made no contribution to the punishment assessed. TEX. P. APP. P. 82(b)(2).
        We affirm the trial court's judgment.
 
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
86-00003.RMF
 
 
File Date[01-02-89]
File Name[860003]